Transnational judicial cooperation in the light of legal pluralism: a look at the relationship between the EFTA Court and the Icelandic Courts

Doctrines developed by the EFTA Court have placed considerable demands on national courts in the EFTA States. The Court now considers the EEA Agreement to form an “international treaty sui generis which contains a distinct legal order of its own.” It would thus seem that EEA law has transformed into an independent legal order, and subsequently has a claim to validity which emulates the self-legitimising presentation of the EU legal order. This, however, is not an empirically verifiable fact, but a particular understanding which arises when one adopts the viewpoint of the EFTA Court. EEA law takes place in a different realm when interpreted and applied in the national order: this realm is essentially a construction of the constitutional order. Case law shows that the Icelandic Supreme Court is far from accepting all EEA judge-made principles. This study will describe a context of legal pluralism by reference to the Icelandic legal system and its relationship with the EEA legal order. To illustrate the discussion, the most important case law relative to the interaction between Icelandic laws and EEA law will be considered in the light of legal pluralism - particularly the principles of contrapunctual law designed by Miguel Maduro. The paper argues that the Supreme Court’s internal domestic approach to the application of EEA law will inevitably become a source of fragmentation unless it takes place within an institutional framework of judicial tolerance and judicial dialogue

The Status of Non-Implemented EEA Law in Iceland: Lessons from the judicial reactions of the Supreme Court to International Law

In October 2007, the European Free Trade Association (EFTA) Court confirmed that the doctrines of direct effect and primacy could not be generated by the European Economic Area (EEA) Agreement alone. Rather, the effects of non-implemented EEA provisions were to remain in the hands of the EFTA States. Hence, the relevant question is what weight should be accorded to such norms in domestic law? The Icelandic Supreme Court has yet to take a stance on the direct effect question relation to incorrectly or insufficiently transposed EEA law. The issue has, however, been addressed several times in connection with the European Convention on Human Rights, before its incorporation. In order to address the unclear legal status of EEA norms in Icelandic law, this contribution takes a closer look at the judicial attitude of the Supreme Court taken towards international law in general and the Convention in particular. The perceived differences between EEA law and the Convention have made it easy for observers to dismiss such comparison on the grounds that the two kinds of legal regime are not readily comparable. The article questions these apparent differences by pointing out that EEA law in fact shares all of the features of the Convention that led judges to enforce it in the Icelandic legal order

Giving effect to EEA law : examining and rethinking the role and relationship between the EFTA Court and the Icelandic National Courts in the EEA legal order

Defence date: 21 January 2013Examining Board: Professor Ernst-Ulrich Petersmann, European University Institute (Supervisor); Professor M. Elvira Mendez-Pinedo, University of Iceland (external co-supervisor); Professor Miguel Poiares Maduro, European University Institute; Judge Páll Hreinsson, EFTA Court.Doctrines developed by the EFTA Court have placed considerable demands on the various national courts in the EFTA States. The Court now considers the EEA Agreement to form an "international treaty sui generis which contains a distinct legal order of its own." This thesis will study the interaction between the EFTA Court and Icelandic courts. The basis of this research rests on two levels. At the EEA level, it is the ECJ and the EFTA Court that form the basis of the study. At the national level, the thesis studies Icelandic Supreme Court and district court decisions. I will approach the question of the impact of EEA law on Icelandic domestic law from two dimensions: substantive and procedural. In substantive terms, the study examines fundamental European judgemade principles, as well as the impact these doctrines have had on Icelandic law. This will indicate how Icelandic courts deal with potential conflicts of law between EEA and Icelandic law, and how they respond to EFTA Court decisions and EEA principles. This part examines many fundamental concepts of EEA law, but the subject mainly raises questions concerning four specific concepts and the reaction of the Icelandic system to them. These are: first, the question of direct effect in EEA law second, the obligation of national courts to interpret national law in the light of EEA law third, the primacy of implemented EEA law and fourth, the principle of State liability. These legal concepts have all been seen as posing specific challenges to Icelandic courts. In its second stage, the thesis will, in procedural terms, study the relationship between the EFTA Court and the Icelandic courts, by investigating how the reference procedure under Article 34 SCA has been applied by the national courts in Iceland. It is only by looking at the discretion exercised by the courts as to whether or not to make a reference that one can form an opinion of Icelandic courts' openness to the EEA legal order

The authority of European law : exploring primacy of EU law and effect of EEA law from European and Icelandic perspectives

The authority of European law is a classic question explored in all general textbooks, but the entry into force of the Lisbon Treaty and new cases from several constitutional courts in Europe have reawakened this interest. Addressing the interaction between EEA law and European law, on one hand, and the Icelandic legal system, on the other, and combining the perspectives through the lenses of different European courts is a project requiring in-depth study and meticulous explanation both in Iceland and abroad. This book sets out to explore the current status, scope and limits of the authority of European law as well as the role of national judges in the construction of the EU and EEA legal orders by putting together European and Icelandic perspectives. The aim is to analyse the principle of the primacy of EU law, as construed by the ECJ and different European constitutional courts, on the one hand (Part I), and the EEA principles of consistent interpretation, “quasi-primacy” and State liability, as reflected in the jurisprudence of the EFTA Court and the Icelandic courts, on the other (Part II). The intention of the authors is to draw on the different existing perspectives to provide a richer, fuller, and more integrated picture of a complex topic which is the interaction of European law and national laws in the EU legal order and its parallel development in EEA law and, more specifically, in Iceland. This book is an invitation for all actors to get acquainted with the most recent legal knowledge and theories in the fields of EU and EEA law, stand up to the challenges ahead and find the proper way to assure a more constructive relationship between the European legal system and domestic law